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US Has Golden Opportunity To Demonstrate Its Support For ‘International Order’ – Analysis

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The struggle between China and the U.S. for dominance in the South China Sea has raised fundamental questions regarding the “international order” – – the body of rules, norms, and institutions that govern relations between nations. These increasingly important questions include : what is it, who is abiding by it and who is not.   Some say the U.S. only supports those parts of the international order that further its short term interests. But now the U.S. has a golden opportunity to demonstrate its support for the international order even when it may not be in its short term interest to do so. Its decision will be watched carefully by China and others.

 The U.S. claims to uphold what it deems to be the ‘international order’ and often calls out and unilaterally punishes those countries who do not abide by its interpretation thereof.  Indeed, the U.S. says that in the South China Sea in particular, China is violating and trying to revise it through its claims and actions – – including rejection of an international arbitration decision against it.  Yet the US’s own general record of supporting international law and regimes is spotty.  It refused to abide by an International Court of Justice (ICJ) decision against it in a case brought by Nicaragua. https://en.wikipedia.org/wiki/Nicaragua_v._United_States  It withdrew from the Paris climate accords and the Trans Pacific Partnership.  And it often appears to violate the UN Charter by threatening and even using force to achieve its international political objectives.

But it is in the maritime realm that its hypocrisy stands out. The UN Convention on the Law of the Sea (UNCLOS) has been ratified by some 168 parties including China. The U.S. alone –among maritime powers– has declined to do so.  Yet it accuses Asian countries – especially China – of violating the Convention and uses warships to challenge any of their claims and regimes that in its interpretation ‘illegally’ restricts its rights to freedom of navigation for its warships.  It has also repeatedly lambasted China for refusing to accept and abide by an arbitration decision against it rendered through a process mandated by UNCLOS.

The opportunity at hand involves an advisory opinion by the ICJ for Mauritius against Britain regarding ownership of the strategically important island of Diego Garcia that is home to a US military base. https://www.theguardian.com/world/2019/feb/25/un-court-rejects-uk-claim-to-sovereignty-over-chagos-islands; https://economictimes.indiatimes.com/news/defence/icj-advises-britain-to-return-diego-garcia-to-mauritius/articleshow/68169448.cms Diego Garcia is an atoll just south of the equator in the central Indian Ocean. https://en.wikipedia.org/wiki/Diego_Garcia It is the largest of 60 small islands comprising the Chagos Archipelago.  Between 1968 and 1973, the indigenous population was forcibly removed by the U. K. and the U.S. through intimidation and  denial of return to any who left the island. 

The U.K. then leased the atoll to the U.S. and it built a large naval and air force base.  It became fully operational in 1986.  Its strategic value has been proven repeatedly.   It provided an air base for U.S. military operations during the Iraqi invasion of Kuwait, Operation Desert Fox, Operation Enduring Freedom, Operation Iraqi Freedom and allegedly for CIA renditions. https://www.cnn.com/2019/03/09/asia/chagos-islands-feature-intl/index.html The atoll continues to play a key role in America’s military strategy regarding the Indian Ocean and its environs –including as a base for bomber training missions over the South China Sea.

 The ICJ, in a majority opinion, said decolonization of Mauritius “was not lawfully complete” when it attained independence because Britain retained control over the Chagos Archipelago. The opinion, which is advisory and thus non-binding, was rendered by a majority of 12 of the 13 judges. It concluded that Britain “is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.”  The sole dissenter was the American Judge. (The U.K. did not have a judge on the court at the time).

The court produced the opinion at the request of a resolution approved by the UN General Assembly (UNGA).   The 23 June 2017 resolution making the request was supported by 94 countries but vehemently opposed by Britain and the U.S. .  Britain maintained that the dispute was a bilateral matter between it and Mauritius and indicated it would reject any ICJ decision against it.  This is similar to China’s position regarding the international arbitration brought against it by the Philippines. In that case, China argued that the matter should be negotiated between it and the Philippines. It refused to participate in the hearings and when the decision went against it, it declared that it would neither recognize nor abide by the binding decision. The U.S. severely criticized it for doing so and alleged that it was a prime example of China’s revisionist tendencies regarding existing international law and order.

So what will be the U.S. policy going forward regarding this Chagos case?

Although the U.S. base is not in immediate danger, its future is uncertain.   If the advisory opinion is implemented, the U.S. will have a new landlord that might not only raise the ‘rent’ but also enact new restrictions on the use of its territory.  Moreover reparations for the forced removal of the original inhabitants of Diego Garcia and their right to return could become issues. 

The advisory opinion will now be debated by the UNGA.  If the U.K. persists in ignoring the non-binding UN advisory opinion, the U.S. will be tempted to support the U.K.  It may well argue –as Britain most likely will –that the decision is not binding and therefore does not have to be followed. In other words, the U.S. could remain more or less true to form and only support that ‘international law and order’ that is in its current interest.   It might even try to bully or bribe Mauritius into continuing to allow the base to support its hegemony in Asia. 

However it could also seize the opportunity by supporting the ICJ decision against Britain even though it is not in its short-term interest to do so. So the question becomes : will the U.S. make its policy consistent with its stated principles regarding the upholding of the international order? Or will it continue its disingenuous policy of “do what I say, not what I do.”

This piece first appeared in the I|PP Review. https://thediplomat.com/2019/03/americas-golden-opportunity-to-demonstrate-its-support-for-international-order/


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Mark J. Valencia

Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles and Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China

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